State v. Nutter

[Cite as State v. Nutter, 2016-Ohio-8291.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
:
STATE OF OHIO, :
:
Plaintiff-Appellant, : Case No. 16CA23
:
v. :
:
NICHOLE NUTTER, : DECISION AND JUDGMENT ENTRY
:
Defendant-Appellee. : RELEASED: 12/16/16
:
______________________________________________________________________
Hoover, J.,
{¶1} Appellant State of Ohio filed a notice of appeal from a journal entry finding
that the state failed to demonstrate probable cause that Appellee Nichole Nutter violated
community control/judicial release. The state did not file a motion for leave to file an
appeal pursuant to R.C. 2945.67(A) and App.R. 5(C). After reviewing the notice of
appeal, this Court noted that the journal entry being challenged did not appear to be one
of those enumerated in R.C. 2945.67 authorizing the state to appeal as of right. We
directed the state to submit a memorandum on this issue within ten days.
{¶2} The state filed a memorandum in which it conceded that it did not have an
appeal of right and that the appropriate avenue would have been to file for leave of
court to file the notice of appeal. Instead of filing a separate motion for leave, the state’s
memorandum includes the following statement, “the State now moves for leave of court
to file a notice of appeal pertaining to the issue.”
{¶3} The state’s right to appeal a trial court’s decision is governed by R.C.
Athens App. No. 16CA23 2
2945.67(A), which states:
(A) A prosecuting attorney, village solicitor, city director of
law, or the attorney general may appeal as a matter of right
any decision of a trial court in a criminal case * * * which
decision grants a motion to dismiss all or any part of an
indictment, complaint, or information, a motion to suppress
evidence, or a motion for the return of seized property or
grants post conviction relief * * * and may appeal by leave of
the court to which the appeal is taken any other decision,
except the final verdict, of the trial court in a criminal case * *
*.
{¶4} This statute grants the state a substantive, but limited, right of appeal.
State v. Slatter, 66 Ohio St.2d 452, 456-57, 423 N.E.2d 100 (1981). The State’s
absolute right of appeal is only available when the trial court’s decision falls into one of
four categories stated in the statute: (1) a motion to dismiss all or part of an indictment,
complaint, or information; (2) a motion to suppress evidence; (3) a motion for the return
of seized property; or (4) a petition for post-conviction relief. State v. Matthews, 81 Ohio
St.3d 375, 377-78, 691 N.E.2d 1041 (1998).
{¶5} The state may appeal “any other decision, except the final verdict” of the
trial court, but only if the state first obtains leave from the appellate court to take the
appeal. R.C. 2945.67(A); Matthews at 378 (stating it is solely within the discretion of the
reviewing court to grant or deny the state’s motion for leave to appeal in a criminal
case); State v. Keeton, 18 Ohio St.3d 379, 481 N.E.2d 269 (1985) (holding the state
may appeal any decision of a trial court by leave of the appellate court in a criminal case
which is adverse to the state, except a final verdict). The decision to grant or deny
leave for the State to appeal rests solely within the appellate court’s discretion. State v.
Athens App. No. 16CA23 3
Fisher, 35 Ohio St.3d 22, 23, 517 N.E.2d 911 (1988).
App.R. 5(C) states:
(C) Motion by Prosecution for Leave to Appeal. When leave is sought by
the prosecution from the court of appeals to appeal a judgment or order of
the trial court, a motion for leave to appeal shall be filed with the court of
appeals within thirty days from the entry of the judgment and order sought
to be appealed and shall set forth the errors that the movant claims
occurred in the proceedings of the trial court. The motion shall be
accompanied by affidavits, or by the parts of the record upon which the
movant relies, to show the probability that the errors claimed did in fact
occur, and by a brief or memorandum of law in support of the movant's
claims. Concurrently with the filing of the motion, the movant shall file with
the clerk of the trial court a notice of appeal in the form prescribed by App.
R. 3 and file a copy of the notice of appeal in the court of appeals. The
movant also shall furnish a copy of the motion and a copy of the notice of
appeal to the clerk of the court of appeals who shall serve the notice of
appeal and a copy of the motion for leave to appeal upon the attorney for
the defendant who, within thirty days from the filing of the motion, may file
affidavits, parts of the record, and brief or memorandum of law to refute
the claims of the movant.
{¶6} “The state is strictly held to the requirements of App.R. 5 when appealing
by leave of court.” State ex rel. T.L.M. v. Judges of First Dist. Court of Appeals, 147
Ohio St.3d 25, 2016-Ohio-1601, 59 N.E.3d 1260, ¶12-14. When the state does not
strictly adhere to the requirements of App.R. 5, the appellate court patently and
unambiguously lacks jurisdiction to entertain the state’s appeal. Id. at ¶ 14.
{¶7} Here the state failed to comply with the procedural mandates of App.R.
5(C). The state did not file a motion for leave to appeal, but instead included a one-
sentence request as part of its memorandum; the state did not file affidavits or the parts
of the record on which it relied to show the probability that the errors claimed did in fact
occur; it did not file a brief or memorandum of law in support of the motion; and the
Athens App. No. 16CA23 4
notice of appeal was not filed concurrently with a motion for leave to appeal. See State
v. Fisher, 35 Ohio St.3d 22, 25-26, 517 N.E.2d 911 (1988); see also State ex rel.
Steffen v. Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430,
934 N.E.2d 906, ¶ 27-28 (state did not file a timely motion for leave and did not file it
concurrently with the notice of appeal); In re A.E., 10th Dist. Franklin No. 08AP-59,
2008-Ohio-4552, ¶ 10 (“Absent full compliance the appeal must be dismissed.”); State
v. Mitchell, 6th Dist. Lucas No. L-03-1270, 2004-Ohio-2460, ¶9-11 (motion for leave to
appeal must be filed concurrently with the notice of appeal). Because the state did not
comply with App.R. 5(C), we do not have jurisdiction and we must dismiss this appeal.
{¶8} We DENY the state’s motion for leave to appeal. The clerk shall serve a
copy of this order on all counsel of record and unrepresented parties at their last known
addresses by ordinary mail. APPEAL DISMISSED. IT IS SO ORDERED.
Abele, J. and McFarland, J.: Concur.
FOR THE COURT
_____________________________________
Marie Hoover
Judge